J-S66006-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GABRIEL DOMONIC LEE,
Appellant No. 725 MDA 2014
Appeal from the Judgment of Sentence Entered September 11, 2013
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0001914-2011
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 22, 2014
Appellant, Gabriel Domonic Lee, appeals nunc pro tunc from the
judgment of sentence of 6-12 years’ incarceration, imposed after he was
convicted of selling 1.4 grams of cocaine to a police informant. Appellant
contends that the verdict was against the weight of the evidence. After
careful review, we affirm.
The trial court summarized the facts adduced at trial as follows:
The Commonwealth first presented testimony from Dustin Lamir.
Lamir was working as a confidential informant for the Franklin
County Drug Task Force. On that date, Lamir purchased cocaine
from [Appellant], Gabriel Lee. He had known Lee at least one
week prior to the transaction. Lamir first met Lee at a bar in
Greencastle, where he lamented that he was new in town and
did not know where he could "get anything." To this, Lee replied
that anytime you need something, give me a call." Lee identified
himself as "G," the name he went by on the street. Lamir then
informed Detective Jason Taylor of his newly acquired source in
preparation for a deal to be set up.
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Lamir testified that he attempted to contact Lee by phone and
text message, but received no reply. Lamir then ran into Lee
again, and their business relationship took off from there. On
October 3, 2011, Lamir called Lee and requested "an eight ball
of cocaine." The two men discussed the price of that
commodity, which came out to $170.00. Lee instructed Lamir to
contact him when he was in the area.
Lamir met with Detective Taylor, where he was searched prior
to the meeting with Lee. Lamir testified that his pockets were
pulled inside out, he took his shoes off and Detective Taylor
shook them, and he was patted down. Detective Taylor then
provided Lamir with $170.00. Lamir called Lee, who told him to
meet at Papa John's, located approximately 80-100 yards from
Lee's residence, and is within sight of that residence. While
Lamir was waiting at Papa John's, he attempted to call Lee at
least three times but got no answer. Lee and his friend Mike
Zolla then approached the Papa John's. Lee carried a dog with
him. Lamir walked toward the two men and indicated that he
had the money. Lamir testified that he pulled the money out
and "Lee spit the cocaine from his mouth and we made the
exchange." The cocaine was in a small plastic bag. After Lee
handed the cocaine to Lamir, the three men proceeded to walk
across the street towards the Papa John's. Lamir stated that the
transaction took approximately two minutes. After this
encounter, Lee and Zolla walked up an alley next to the pizza
shop. Lamir returned to Detective Taylor's vehicle, where he
turned over the cocaine purchased from Lee.
The Commonwealth next presented testimony from Officer
Bryan Chappell of the Waynesboro Police Department. Officer
Chappell has worked in law enforcement for thirteen years. In
October of 2011, Officer Chappell was working as a detective
with the Franklin County Drug Task Force. During his time
there, he conducted approximately 50 drug investigations. On
October 3, 2011, Officer Chappell assisted with the controlled
drug buy in this case, setting up surveillance in a large SUV on
South Carlisle Street. Officer Chappell watched Lamir walk
South on S. Carlisle Street. He testified that he saw a golden car
parked North on S. Carlisle Street against the curb. Out of that
car emerged Lee and a second male, who was identified as Mike
Zolla. Officer Chappell watched Lamir as he met with Lee and
Zolla. Lee had a dog in his hand. Lee then went into his
residence while Zolla remained outside with Lamir. Officer
Chappell was approximately a block and a half away from the
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meeting, taking photographs with his camera. He did not
witness a "hand-to-hand" transaction between Lee and Lamir.
Officer Chappell stated that he was 100 percent positive that he
saw Lee meet with Lamir on October 3, 2011 for the transaction.
The Commonwealth then presented testimony from Detective
Jason Taylor, an investigator with the Franklin County Drug Task
Force. Detective Taylor has worked in law enforcement for
sixteen years, including over 1,000 drug investigations. He
briefly described the role confidential informants play in drug
investigations, explaining that they are involved in over 90
percent of those investigations. Throughout his career,
Detective Taylor has been involved with approximately 100
confidential informants. He stated that Lamir became an
informant in the summer of 2008 or 2009.
Detective Taylor stated that the Task Force arranged a
controlled cocaine purchase on October 3, 2011. Detective
Taylor previously told Lamir to contact Lee and arrange the
transaction. The purchase was set for around 3:30 p.m. Upon
meeting Lamir, Detective Taylor searched him for money or
contraband, after which he provided Lamir with the $170.00
purchase money. The transaction was to take place in the area
near the Papa John's on S. Carlisle Street, which was near Lee's
residence. Lamir was equipped with a wire under his clothing.1
Detective Taylor drove Lamir to the location, and watched him
walk South down the street to meet Lee. He stated that the
location was a little more than half a block from Lee's residence,
which was in sight of the Papa John's. Detective Taylor was two
blocks down the street from the transaction.
1
Detective Taylor testified that the quality of the recording
was poor and it was difficult to hear the conversation
between Lamir, Lee, and Zolla.
After the drug buy, Lamir returned to Detective Taylor's
vehicle and turned over the cocaine. Lamir stated that he
purchased the drugs from Lee. Detective Taylor searched Lamir
again and found no money or contraband on his person. The
substance purchased was in a small plastic bag, in a white
powdery form, which was later confirmed to be cocaine.2
Detective Taylor was later recalled to testify by [Appellant],
where he focused on the Task Force's procedure regarding the
money used in controlled drug buys, and for weighing the drugs
recovered. Detective Taylor testified that, based on his
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experience in drug investigations, he believed that Lee did have
the ability to hold a bag of cocaine in his mouth while he spoke
to an informant.
2
The Commonwealth also presented testimony from
Robert Wagner, a retired Pennsylvania State Police forensic
scientist. Mr. Wagner discussed the procedures for testing
to determine if certain substances are drugs. He tested
the substance purchased from the transaction in this case,
and found the substance to be 1.4 grams of cocaine.
The Court also heard testimony from [Appellant], Gabriel Lee.
Lee stated that on October 3, 2011, he left his cell phone in
Hagerstown, Maryland. Lee presented conflicting testimony
regarding his trip to Hagerstown.3 He testified that upon his
return from Hagerstown, he found his friend Mike Zolla standing
outside his residence. He stated that he was unaware that Lamir
was on his way to meet him, and denied speaking to him that
day. When he went inside his home, his fiancé asked him to
take their dog out. M. Lee stated that when he came out of his
house, he saw Lamir and Zolla talking, but "thought nothing of
it" because the two gentlemen were friends. Lee stated that if
Lamir had purchased drugs, it wasn't from him but from Zolla.
Lee maintained that it was not his phone that Lamir called, and
that he never sold Lamir any drugs.
3
For example, on cross-examination, he stated that he
and Zolla went to Hagerstown together to visit his family.
Lee then stated that Zolla knew people in Hagerstown. He
later stated that someone dropped him and Zolla off at
Lee's residence after going to Hagerstown.
Trial Court Opinion (TCO), 6/24/14, at 3-6 (citations omitted).
The police filed a criminal complaint on October 7, 2011. On
November 18, 2011, the Commonwealth filed a criminal information
charging Appellant with delivery of a controlled substance (cocaine), 35 P.S.
§ 780-113(a)(30). Appellant was subsequently tried at a non-jury trial held
on August 13, 2013, where he represented himself pro se with the
assistance of stand-by counsel. The trial court found Appellant guilty the
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same day. On September 11, 2013, Appellant was sentenced to a term of
6-12 years’ incarceration, imposed consecutively to a sentence received in
an unrelated case.
Appellant subsequently requested the appointment of counsel for the
filing of post-sentence motions and a direct appeal; however, that attorney
failed to file either on Appellant’s behalf. Consequently, the trial court
reinstated Appellant’s direct appeal rights nunc pro tunc and appointed new
counsel by order dated April 8, 2014. That order did not expressly reinstate
Appellant’s post-sentence motion rights. Appellant then filed a timely notice
of appeal on April 28, 2014. Appellant also filed a timely Pa.R.A.P. 1925(b)
statement on May 16, 2014. The trial court issued its Rule 1925(a) opinion
on June 24, 2014.
Appellant now presents the following question for our review:
Did the trial court abuse its discretion in failing to find that the
verdict [was] against the weight of the evidence in that the only
evidence establishing that the drugs came from … Appellant[,]
and not Michael Zolla[,] was the testimony of the [c]onfidential
[i]nformant (CI)[,] despite an abundance of evidence and lack of
evidence to the contrary?
Appellant’s Brief at 8.
It is axiomatic that:
[A] weight of the evidence claim must be preserved either in a
post-sentence motion, by a written motion before sentencing, or
orally prior to sentencing. Pa.R.Crim.P. 607; Commonwealth
v. Priest, 18 A.3d 1235, 1239 (Pa. Super. 2011). Failure to
properly preserve the claim will result in waiver, even if the trial
court addresses the issue in its opinion. Commonwealth v.
Sherwood, 603 Pa. 92, 982 A.2d 483, 494 (2009).
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Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012).
Instantly, Appellant did not file a post-sentence motion preserving his
claim that the verdict was against the weight of the evidence. 1
Consequently, the issue has been waived. Lofton, 57 A.3d at 1273.
____________________________________________
1
Appellant acknowledges that this claim was not preserved in a post-
sentence motion. Appellant’s Brief at 12 n.1. Appellant contacted the trial
court to confirm that the April 8, 2014 order reinstating his appeal rights did
not include reinstatement of his right to file post-sentence motions, despite
his desire to file such motions. Appellant argues that we should entertain
the claim because of this, and because the trial court addressed his weight
claim in its Rule 1925(a) opinion. Unfortunately, this is not possible. “An
allegation that the verdict is against the weight of the evidence is addressed
to the discretion of the trial court.” Commonwealth v. Widmer, 744 A.2d
745, 751-52 (Pa. 2000). Furthermore, “[a]ppellate review of a weight claim
is a review of the exercise of discretion, not of the underlying question of
whether the verdict is against the weight of the evidence.” Id. at 753.
Here, the trial court never exercised its discretion because it never ruled on
a properly raised weight-of-the-evidence claim. Thus, this Court does not
have a discretionary act to review.
The trial court does not indicate, nor can we fathom, why it did not
reinstate Appellant’s post-sentence motion rights when it reinstated his
direct appeal rights, despite having found that Appellant was effectively
abandoned by his initial appellate counsel after that attorney “admitted that
she failed to file timely post-sentence motions or an appeal on behalf of her
client, resulting in a waiver of [Appellant]’s right to file an appeal.” TCO, at
2. However, the issue of the trial court’s failure to reinstate Appellant’s right
to file post-sentence motions was not challenged in an appeal from the order
reinstating Appellant’s direct appeal rights, and is not the subject of the
instant appeal.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/2014
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